The Jurisdiction of the Syariah Courts
Article 3(1) of Malaysia’s Federal Constitution institutionalises Islam as the religion of the country. At the same time, other religions may be practised in peace and harmony. Notably, nothing in article 3 derogates from any other provision of the Constitution. Article 3 is not taken to mean that Malaysia's law is not secular (Che Omar Che Soh). Nevertheless, Syariah laws made by states can regulate certain aspects of Muslims’ lives. Article 74(2) of the Constitution allows for this. Marriage, divorce, guardianship, adoption, trusts, Malay custom, and Syariah offences are some of these matters. They are dealt with and administered by the Syariah courts.
By a constitutional amendment in June 1988, article 121(1A) was introduced. It intended to “stop the practice of aggrieved parties coming to the High Court to get the High Court to review decisions made by syariah courts” (Sukma Darmawan). Today, the civil courts do not have jurisdiction over matters falling within the Syariah courts' exclusive jurisdiction. Yet, the dichotomy between the civil and Syariah courts' respective jurisdictions under article 121(1A) was not clear in practice in the earlier years. There was no dearth of disputes but much litigation over the limits of the Syariah court’s judicial power.
Interpreting article 121(1A)
The civil court's judicial power is part of the Constitution’s basic structure, and it cannot be removed. Unlike the civil court, the Syariah court does not have inherent judicial power. Parties cannot by agreement enlarge its jurisdiction. Further, the Syariah court is a creature of statute. Its jurisdiction cannot be implied but must be expressly provided by law. Any conferment of jurisdiction must be referable to a particular law or statute (Latifah Mat Zin). As such, it does not have jurisdiction over a non-Muslim (Indira Gandhi a/p Mutho) or a company (ZI Publications).
The Syariah court has the exclusive jurisdiction to decide whether a Muslim has renounced Islam. The civil court cannot interfere (Lina Joy). However, where the question is whether a person “was never a Muslim” instead of “was no longer a Muslim”, the civil court’s jurisdiction is not ousted. The former ab initio type of cases do not fall within the Syariah court's jurisdiction (Rosliza Ibrahim). Further, the civil court can judicially review the legality of administrative actions by Islamic religious authorities. Certificates of conversion into Islam may be quashed for non-compliance with procedural requirements (Indira Gandhi a/p Mutho). But whether a specific asset is part of a deceased Muslim’s estate in a letter of administration case in the civil High Court is a question for the Syariah court to answer according to Islamic law (Latifah Mat Zin).
Regarding crimes, state legislatures cannot make criminal laws over matters under the Federal List to the Constitution. Given this, the Syariah court has no jurisdiction over criminal offences that Parliament can enact even if they are against Islam's precepts. The Federal Court struck down the Selangor Syariah offence of sexual intercourse against the order of nature because only Parliament could enact the same as contained in sections 377 and 377A of the Penal Code (Re IPM).
The courts have spilt much ink over the civil and Syariah conundrum. As evidenced by the cases, a fair amount of suffering has been afflicted on the litigants. It is high time the Government legislates to clarify the situation and avoid recurring litigation. The continuous attempts by certain quarters to enlarge the domination of the Syariah courts have also been disconcerting. The Syariah courts cannot interpret the Federal Constitution (Latifah Mat Zin). Given that its main task is to apply religious laws, more than 60% of Malaysians (namely, Muslims) are disenfranchised from enforcing their constitutionally guaranteed liberties when they appear in the Syariah courts.
* The law stated is as of 5 January 2021